The Court of Appeal sitting in Benin, has fixed Thursday, September 22, 2011 for judgment on the Delta state January 6, 2011 governorship re-run election appeal filed by Chief Great Ovedje Ogboru against the decision of the lower tribunal which upheld the declaration of Dr. Emmanuel Uduaghan as winner of the election by the Independent National Electoral Commission (INEC).

The lead counsel to Chief Ogboru and the Democratic Peoples’ Party (DPP), Mogbeyi Sagay, SAN, said  the appeal is contending that the first issue the court will have to determine was the burden of proof.

He said at the lower tribunal, the petitioner asserted the negative, while INEC, the third respondent in the appeal asserted the positive, saying that  the tribunal in its judgment shifted the burden of proof to the petitioners.

On question of accreditation, he argued that INEC could not prove that accreditation took place in all the places the petitioner was challenging the conduct of the election, adding that the ballot papers were not referable to form EC 8, contending that section 150 of the Electoral Act could not apply in this case when there was no substantial compliance with the Act.

While urging the court to rely on the decision of the Court of Appeal in Ogboru versus Uduaghan, Mogbeyi also urged the court to allow the appeal, dismiss any other appeal pending on the matter, and declare Chief Great Ogboru governor of Delta State.

Replying, lead counsel to Dr. Uduaghan, Chief Wole Olanipekun (SAN), urged the court to dismiss the appeal for lacking in merit either in law or in fact.

He argued that the assertion of negative by appellant does not change the position of the law in section 135, 136 and 137 sub-sections 1 of the Evidence Act, saying that the burden was always on the petitioner to prove.

He further argued that section 150 (1) indicates that result declared by INEC is presumed to be correct and regular, saying that the case of Ogboru versus Udugahan cited by the petitioner’s counsel was not a talisman, as he did not meet the standard of proof.

Chief Olanipekun said the lower tribunal was right and still right in holding that the petitioner did not prove any case of non-compliance with the Electoral Act, or how that non-compliance affected the result of the election, and therefore urged the court to dismiss the appeal.

In his submission, lead counsel to the second respondent, PDP, A. Adenipekun SAN, adopted the submissions of Chief Olanipekun and added that contrary to the submission of Ogboru’s counsel, the burden of proof was not static but changes, depending on the circumstances of the case.

He said the petitioners have failed to prove their case and urged the court to dismiss the appeal as lacking in merit.

Earlier, while arguing a cross appeal filed by Dr. Emmanuel Uduaghan, Chief Olanipekun had urged the court to allow the appeal adding that before the lower tribunal, there was no life issue to contend with by the petitioner to arouse the jurisdiction of the tribunal.

Citing Section 180 (2), 2A of the constitution and the judgment by Justice Buba of the Federal High court sitting in Asaba, Chief Olanipekun said “the seat for which there was a re-run had expired, a new election had taken place, a new tenure has commenced and a court cannot make an order which cannot be enforced either practically or legally”.

Replying, counsel for Ogboru and DPP, Prof. Joseph Mbadugha argued that the judgment of Justice Buba J. referred to by Olanipekun was not in anywhere referred to.

He contended that to determine whether there is a life issue in Ogboru’s appeal, the court should look at issues arising from the lower tribunal.